Choosing executors, trustees and guardians
This article is one in a series about how to write a Will. The series combines explanations of legislation which should be most relevant to you when you write your Will with practical considerations. We hope that it both thorough but also easy to digest.
A list of all articles in our guide to writing your own last Will and testament.
The role of the executor is an important one - your Will gives legal rights and powers to the named executors - so it is worth taking time to choose the right ones.
An executor acts on your behalf to carry out your instructions in your Will.
The executor's duties are stated in section 25 of the Administration of Estates Act 1925:
to collect and get in the real and personal estate of the deceased and administer it according to law;
when required to do so by the court, exhibit on oath in the court a full inventory of the estate and when so required render an account of the administration of the estate to the court; and
when required to do so by the High Court, deliver up the grant of probate or administration to that court.
Immediately on your death, all your property is automatically placed in trust with your nominated executor or executors being the trustees. However, until your executors obtain a grant of probate from the Probate Registry, they have no official authority to act.
Once they have proved the Will, they have legal power to administer the estate.
The duties of an executor include:
Help with arrangements immediately after your death
help with funeral arrangements (note: the funeral usually happens before probate is granted, and often is arranged by family members or friends rather than the executors)
arrange immediate funds for a surviving husband, wife, civil partner and children
secure assets against theft, fire, loss and any other damage
'Gather' in the estate
When probate has been granted, the executors can start to collect the assets which comprise your estate.
The document issued is circulated to each debtor, creditor, authority and other affected organisation with a request for the appropriate action.
The executors then decide what to do with each asset. This is usually a matter of 'keep or sell'.
prepare a complete inventory of all the your assets and liabilities at the time of your death, including their value
place advertisements for creditors
prepare and file income tax returns (HMRC being a creditor)
Distribute the estate according to your wishes
Executors also have to understand your exact wishes, make sure they are in accordance with the law, and carry them out. Their obligation is limited to doing what you ask in your Will. They take no account in law of anything else.
pay all debts including funeral expenses, estate administration expenses and taxes (including inheritance tax)
distribute the money, property and personal possessions to the beneficiaries
keep complete and accurate accounting records to prove that they acted correctly
Technically, you do not need to appoint an executor.
But somebody will have to deal with winding up your estate when you die, no matter how little you own.
If you haven't appointed at least one executor, or if you named executor has died, then someone else will step in as an administrator. Who that person is depends on a set of complicated rules laid out by law. It could be someone you know and trust, it could be someone you know and don't trust, or it could be a stranger.
It is also a far more complicated process for someone you trust to apply to be an administrator than it is for you to name that person in your will as an executor.
In short, if you want to make sure your possessions are dealt with as you want, it is best to appoint an executor.
Most people appoint two or three executors, depending on who they choose.
Up to four executors can take up the position by law.
Appointing a sole executor might be risky - he or she may die before you do or shortly after you, or may renounce his or her position. A single executor is generally most suitable if that person is young and also your principal beneficiary.
Anyone over the age of 18, of sound mind and not in prison, can be an executor.
A child can be appointed as an executor, but he cannot act until he is 18 years old. Beneficiaries can be executors.
The most common choices are:
close family: wife, husband, partner, children, sibling
friend of family
Executors will need to be around after your death, so avoid old people and people who live at a great distance.
Consider how old your executors will be in ten years' time. If you choose someone who is 60 now, she might be 75 when she has the responsibility you give to her of looking after a trust! There is not much point in choosing someone now aged over 60.
Who you choose will also depend on:
the degree of complication of your affairs
how those closest to you will cope if you were to die
how you rate the business efficiency of people on your list of possible appointees
whether there may be conflicts of interest in the family
how many executors you want
There may be several candidates in this category. It is most unlikely that they will think in similar ways or have similar ideas about how to deal with your assets. As an executor, one person may want to sell your house quickly because, as a beneficiary as well, he wants his share of the money fast. Another person may want to sell quickly because he is nervous that there will be no other bidder. A third may be insistent on obtaining the best possible price, no matter how long it takes.
Another potential problem is balancing your children's needs with the needs of your current partner. Suppose you leave your house and some money in trust for the life of your second spouse or partner, with a gift on their death to your children of an earlier marriage. If your children are trustees, they may be cautious about the freedom they allow to your spouse or partner to move house and want to control what he or she buys and how money is spent. This is natural, since they will receive whatever is left when that person dies. We do not suggest you should be unhappy with this proposition, just that you should be aware of it.
If you do choose family, consider an absolute limit of three; preferably make it two.
Such a person has no personal interest except the gratitude for your past friendship or business and possibly an interest in the work in winding up your estate.
The main benefit here is objectivity and neutrality.
The main downside to using a solicitor or accountant as an executor or trustee is that he will want to undertake the probate work. Since he is then his own client, he can charge what he likes, within reason. The legal profession regards probate as a sound and reliable source of profit. Full hourly rates are charged, even though there is no marketing involved, and no risk of loss or reduced fees. He may not have any incentive to wind up the estate or distribute the trust quickly because the longer it takes, the more work he has.
In summary - solicitors are generally sound executors, but they are often very slow and they come at a price.
Under the Trustee Act 2000 a trust corporation or professional trustee may charge a reasonable fee for their services. Executors who are not trust corporations or professional trustees may charge only if the Will contains a paragraph which expressly authorises the payment. They may however, claim out of pocket expenses in any event. The best position is to provide in your Will that professionals may charge.
No one who operates a bank account can be unaware of the trust and probate services offered by their friendly bank. Their advertising emphasises their probity and eternity, both sound qualities; but says little about their charges or the quality of their work. We advise very strongly against using this category because:
Banks tend to charge even more than solicitors. The writer is aware of a recent case where an estate of £5 million has taken 27 years to wind up and the bank has taken fees of £4.5m. The bank has simply paid massive professional fees and added 20% to everything for doing nothing. The beneficiaries live in several countries so are disinclined to challenge.
It is almost impossible for beneficiaries to prise the probate work away from a bank trust corporation because they are usually appointed as sole executors so, once appointed, they are their own customer.
There is no effective mechanism for you to complain about bank charges.
Banks are happy to pay for whatever specialist services best protect them and reduce the work they themselves must do, so cash is splashed out regardless.
There is a natural bureaucratic tendency to over-rely on professional advice - if an estate agent says sell, they will sell. This is not on account of any dishonesty, it is just to keep simple the lives of those who do the work.
The same bureaucratic approach leads to inflexibility and slowness; the contact point, if any, is with a system, not a competent individual.
In summary, banks may charge more, but the main disadvantages arise from their profligacy with payments to others and the sheer bureaucracy of large organisations.
But these comments do not apply to smaller probate specialist trust companies. These tend to be comparative newcomers who undercut the banks, sometimes by gigantic sums. They employ solicitors and systematise the work for a fixed fee. They work for any executors. Some do not even provide trustee services.
Yes, an executor can also be a beneficiary. This is actually very common, as most people nominate their husband, wife or civil partner as an executor, as well as leaving them some of the estate.
An executor may 'renounce probate' if he does not want the job. He or she does not have to give a reason. It happens rarely but true reasons may include:
has no time
has fallen out with your family
is unhappy with your Will
If he or she renounces, the remaining executors may act without him or her or invite some else to join them as an executor. It is possible to name a replacement executor in your Will in case one of the executors cannot act.
If your Will creates no trust, when the assets have been distributed, the executors retire from their duty. If there is a trust, they are likely to become trustees and operate the trust. They may continue to do so for many years.
Alternatively, you can name one or more different people as trustees in your Will. Those people will take over by arrangement with the executors. This happens rarely. As a result, if one trustee is a solicitor, he will act as his own client in instructing his firm to undertake the trust work. This is very profitable and low risk to a law firm. Unless something goes very wrong, the beneficiaries never know much about the management of the winding up or the later management of the trust.
If you want to appoint a solicitor or accountant as a trustee, you should therefore also appoint two independent-minded relatives or friends to work with him.
A little thought and organisation will make it far easier for your executors to deal with your estate fast and at low cost.
Place your original Will somewhere safe.
Your solicitor will keep your Will safe, probably at no cost. But he may insist on drawing it for you first and will expect your executors to come to him when you die, to instruct him for the probate work.
You can also leave your Will with your bank, but they do charge for keeping any possessions. The procedures for withdrawing it may be somewhat tedious too.
Other specialist probate firms usually offer low cost secure storage.
A very good place to keep your Will is with the Probate Registry. They do make a charge, but it is only nominal. They give you a certificate of deposit. If you lose that, it may not be possible for your executors to obtain your Will. This may be a good solution if you are concerned that someone may tamper with your Will, or simply because you want to be sure of secrecy.
Another benefit of using the Probate Registry is that they keep an index of Wills which is searched by them automatically every time any application for a grant of probate is made. So if your Will is with them, there is no chance that a fraudulent Will can be proved.
Probably the best place to keep it is in a safe place at home with your other business papers. It is likely that you will want to re-visit your Will from time to time, so it is usually convenient if you have a copy handy for that purpose.
Make sure you place one copy where it would easily be found
Many people give a copy to a child or close relative, or to a proposed executor, although there is always the chance that they may open and read it.
Tell them everything else
It is also important that your family and executors can locate all your business papers. It is a good idea to make a file of all of them, then tell your family where you keep the file! In the file, you could place papers relating to:
funeral arrangements, where, how, music, readings, burial, flowers and more
a list of the names, addresses and contact details of everyone you want to be told of your death
a note of the whereabouts of your Will, birth and marriage certificates, national insurance number, any decree of annulment of marriage or divorce, pension documents, benefits books or papers
a schedule of assets and debts
papers relating to your insurance, pensions, bank statements, share certificates and so on
land certificates and title deeds to property abroad
names and addresses of your accountants and solicitors
a list of the dates and amounts of any gifts you have made over the last seven years and the identity and addresses of the beneficiaries.
Parliament has chosen to abandon the old word 'minor' in favour of 'child', so we use the term both to mean a person under 18 years old and also a person to whom you are a parent, no matter what age.
Guardians have no legal standing in connection with the winding up of your affairs. However, if you have parental responsibility for a child, an appointment of a guardian in your Will legally passes that parental responsibility to your named guardian or guardians jointly. No registration nor documentation is required, but the guardian may need copies of your Will to prove the appointment.
We repeat that a guardian has no status with regard to any trust arising under your Will. He is responsible only for the parental care of your children. If you want a guardian to join other trustees or to act in their place, you must say so in your Will.
However, if you express this request in a letter of intent, it is likely that the original trustees will comply and will stand down in favour of the guardians, who become the new trustees.
The appointment of a guardian is only effective if both parents die. A guardian usually cares for your children, however, the role of the guardian is not to look after your children, but to make decisions about how they should be looked after.
Considering who will be guardians of your children should you die is an emotionally difficult decision to make. Nonetheless, it is strongly in the interests of your children that you should (each) make a Will and appoint guardians. For more about guardians, read this article.
We recommend that you read about the role of trustees next.
We strongly believe that everyone who is over 18 should make a Will. We provide some of our more straightforward Will templates (likely to be suitable for most people) absolutely free with no catches or conditions.
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